Criminal conspiracy is one of the most complicated crimes present in the Indian Penal Code, 1860 and one whose determination depends the most on judicial discretion, and is therefore, often arbitrary. Whatever the crime may be, if it is on a large scale, the allegation of criminal conspiracy is often involved.
The Indian Penal Code defines the offence of criminal conspiracy and prescribes the punishment for the same in Chapter VA under Sections 120A and 120B respectively. The criminalisation of conspiracy had been done on the basis that an agreed design by the parties to commit a crime gives momentum to such commission and decisively shows their intention. The need to include conspiracy as a separate crime was that there are certain offences that are very grave by nature and even if they have not been successfully committed, the mere planning to commit such an offence poses a threat to the society. Thus, it becomes important to punish even the intention to commit such an offence so that people would think before chalking out schemes to commit the same.
Background of the Offence of Criminal Conspiracy-
Originally, under the provisions of the Indian Penal Code, 1860, there were two types of criminal conspiracy –
- Under Section 107 of the Code, conspiracy by way of abetment was a punishable offence. In this case, there has to be an illegal commission or omission on the part of the accused.
- Under Section 310 read with Sections 400 and 401 of the Code, criminal conspiracy could be invoked in case the accused was a member of a gang of thieves or dacoits.
It was in 1868, in the well-known case of Mulcahy v. R, that a common law principle was introduced on the lines that liability under criminal conspiracy would be attracted even if there is a mere agreement between two or more persons to do an unlawful act or a lawful act by unlawful means. This development was soon incorporated in the Indian Penal Code through the Indian Penal Code (Amendment) Act, 1870, which inserted Section 121A which made conspiracy to commit the offences given under it punishable even without any act or omission in furtherance of the objective to commit the offence. However, this did not substantially change the law of criminal conspiracy under the Code.
The position was finally changed by the (Indian) Criminal Law Amendment Act, 1913 which added Chapter VA to the Code to bring the Indian law in conformity with the common law of England, and in the light of the dangerous conspiracies that had entered India in the past, taking advantage of this loophole in the Indian Penal Code. This position has been maintained ever since, although there is a need to develop the law on the procedure to determine criminal conspiracy and convict an accused for the same, in order to reduce the amount of judicial discretion and abuse of powers.
Essentials of Criminal Conspiracy –
The essential elements of the offence of criminal conspiracy, as stated in its definition under Section 120A, are as follows –
- There should be two or more persons involved.
- There should be an agreement between them.
- The agreement should be to do or to cause to be done an illegal act or a legal act by illegal means.
However, the proviso and the explanation add a catch to the offence and bifurcate the liability of parties to an agreement to do an illegal act and those to an agreement to do a legal act by illegal means.
- In case of an agreement to do an illegal act, whether it is the object of the agreement or merely incidental to it, the mere agreement is enough and there need not be any act in furtherance of the agreement.
- In case of an agreement to do a legal act by illegal means, mere agreement is not enough as the agreement is for a legal object. One of the members involved in the agreement has to do some act in furtherance of the agreement to be liable for criminal conspiracy charges.
Conspiracy is a substantive offence which exists in the very agreement between two or more persons to commit an illegal act or even a legal act through illegal means, irrespective of any act in furtherance of the agreement. Thus, an agreement is the sine qua non for constituting the offence of conspiracy. Its essence lies in the unity of purpose and the primary condition is the meeting of minds of two or more persons for the same object.
It is not important that all the conspirators know every single detail of the conspiracy or that they are all actively involved in it. It is also not necessary that all the conspirators participate from the beginning to the end of the conspiracy – some may have been present in the early stages and dropped out thereafter and some may have joined in much later – but they will be held equally responsible.
Further, since conspiracy is a continuing offence, there is no requisite that the parties should agree to commit a single illegal act, as long as the multiple offences have a common object and all the conspirators have the knowledge that they are working towards it by committing separate offences. It is not necessary for all the conspirators to know each other and the object may be achieved through a plurality of means, some even unknown to all the other conspirators, as long as all the acts and means adopted are in furtherance of the aforesaid common object. However, all the conspirators are liable for all the actions of their co-conspirators, even if they had no knowledge of such acts.
Proof of Criminal Conspiracy –
Generally, under criminal law, both mens rea (guilty intention) and actus reus (guilty act) need to be present to constitute an offence. Thus, the mere intention to commit an offence is not punishable under the principles of criminal law and the offence is considered to have been committed only when an act is done pursuant to such intention. However, under the offence of criminal conspiracy, a mere agreement to do an illegal act, which is little more than just a guilty intention that may not even have been carried out, is punishable.
Thus, for proving an offence of criminal conspiracy, there need not be evidence that the conspirators committed any act in furtherance of the conspiracy. However, since any conspiracy is hatched in secrecy, there is rarely any direct evidence that there was a prior agreement to commit an offence. Ultimately, the offence can be proved on the bases of certain acts or omissions committed by the conspirators in pursuance of a common design. It was observed by the Supreme Court in the case of Devender Pal Singh v. State (NCT of Delhi), that –
Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence.
Further, Section 10 of the Indian Evidence Act, 1872 states
Things said or done by conspirator in reference to common design 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 so conspiring, 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.
However, in accordance with the rules governing circumstantial evidence, the Court has to ensure that the circumstances leading to incrimination have been clearly established by reliable evidence and all such circumstances form a chain of events from which the guilt of the accused inevitably follows.
It is essential that there is some physical proof of an agreement between two or more people, which may be proved by their meetings or exchange or even by the relative and conscientious acts and conduct of the parties which show a clear concurrence as to the common object. The agreement, on the other hand, may be express or can be proved by necessary implication.
In the case of State of Tamil Nadu v. Nalini (the Rajiv Gandhi Assassination case), an extensive study of all judicial pronouncements on criminal conspiracy was conducted and the Apex Court laid down a set of main principles governing the proof of criminal conspiracy –
- The offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. In criminal conspiracy, however, there has to be merely an intention to commit an offence as well as the meeting of minds of two or more people.
- Once the object of a conspiracy is achieved, any subsequent unlawful act does not make an accused a participant in the original conspiracy.
- Conspiracy is hatched in private and it is seldom possible for the prosecution to establish it by direct evidence. The existence of the conspiracy and its objects generally have to be inferred from the circumstances and the conduct of the accused.
- Several persons may be a part of the same conspiracy even though they do not know the identity of every other co-conspirator. The participants may have different roles to play and it is not necessary that all of them play the same or an active role.
- To prove the charge or conspiracy, it is not important whether or not the intended crime has been committed, but its commission only adds on to the evidence that there was the existence of criminal conspiracy.
- It is not essential that all the conspirators join the conspiracy at the same time, but they will be held equally liable irrespective of when they joined.
- The prosecution has to present evidence that each of the accused had the knowledge of not only the object of the conspiracy but also the agreement in that regard.
- The offence of criminal conspiracy is complete even if there is no agreement as to the means by which the common purpose is to be achieved.
- The agreement leading to criminal conspiracy need not be formal or express, but may be inferred from the circumstances and the acts and conduct of the conspirators.
- It is said that a conspiracy is a partnership in crime and consists of a joint and mutual agency for the prosecution of a crime. Each and every conspirator is responsible for each and every act of all the other co-conspirators, unless such act is done after the termination of the conspiracy.
- A man may join a conspiracy by word or by deed. Thus, a person who passively stands by while others put the conspiracy into effect is just as responsible as an active participant.
- Conspiracy is a continuous offence till the time of its termination, despite people joining and leaving and performing distinct roles and committing different acts.
- In the absence of proof, any relatives or spouse providing food or shelter to any conspirator cannot be considered as a part of the conspiracy, even if they had knowledge of the same.
- In a joint trial of the accused, the Court needs to ensure that admissible evidence against one accused does not prejudice the position of another. Although it is difficult to trace the exact contribution of each member, the Court needs to look for cogent and convincing evidence against each of the accused.
Thus, the proof of criminal conspiracy depends on circumstantial evidence and prosecution depends heavily on the discretion of the judges as it is difficult to prove the same without direct evidence of the same or without the actual commission of the intended offence.
The Babri Masjid Demolition Case –
The Babri Masjid – Ram Janmabhoomi Dispute
The Babri Masjid is a 500 years old mosque present in the Ayodhya city of the Faizabad district in Uttar Pradesh. In the Hindu epic, the Ramayana, Shri Rama, who is considered to be an incarnation of Lord Vishnu, was born in the ancient city of Ayodhya. It is alleged by radical Hindus and NGOs that the plot of land on which the Babri Masjid was built in 1528, on the instruction of the then Mughal Emperor Babur, was the actually place of birth of Shri Rama and that there was originally a temple dedicated to Rama Lalla on that plot, which was demolished to build the mosque. Therefore, in the light that justice be done to their religious sentiments, the Hindus have been demanding that the land be handed over to them so that they can demolish the Masjid and build a temple paying obeisance to the infant Shri Rama.
History of the Dispute
The dispute over the Babri Masjid plot first began in the 1950s when communal violence started in the nearby Hanumangarhi Temple. This violence spread to the mosque and the Hindus attacked it for the first time. At that time, the attack was successfully averted but since then, the Hindus have been making claims as to the plot of the Babri Masjid being the actual birthplace of Lord Rama. The very first case to claim the land as a part of the Hindu religious sentiments was filed in 1885, but the claim was unsuccessful.
In 1949, an offshoot of the Hindu Mahasabha started an agitation to gain control over the alleged Ram Janmabhoomi and since their claims were not granted, the certain Hindu radicals broke into the mosque at night and placed the idols of Rama Lalla inside the mosque. This was hailed as Hindus as a miracle, further evidencing that the plot was indeed the birthplace of Lord Rama. The then Prime Minister, Jawaharlal Nehru wanted to remove the idol from the mosque because it was an infringement upon the religious rights of the Muslims. However, Sardar Patel and the then Chief Minister of Uttar Pradesh advised him otherwise as they feared that such an act would start a communal riot.
This apprehension took place despite such an action not being undertaken by Nehru and the police barricade around the Babri Masjid, denying access to the mosque to the public – both Hindus and Muslims. The only exception the police allowed in daily were the priests who performed certain religious ceremonies for the worship of the idol of Lord Rama. Thus, in spite of orders from the Courts and the Chief Minister, who promised to protect the interests of the Muslim minority, a de facto temple was created inside the Babri Masjid and the Muslims were denied access to their own place of worship without any fault of their own.
The dispute died down for a while due to the economic difficulties and other problems being faced by the Indian populace, but it was again re-ignited in the 1980s by the Sangh Parivar, Vishwa Hindu Parishad (VHP), the Rashtriya Swayamsevak Sangh (RSS), Shiv Sena and even the Nirmohi Akhara, with the political support of the Bharatiya Janata Party, which had then just carved out its separate identity after breaking away from its parent political party, the Bharatiya Jana Sangh. In 1986, the Faizabad District Judge finally gave orders for opening the gates of the mosque so that Hindus could pray to the idols, though the inner courtyard was kept locked. Thereafter, the Babri Masjid Action Committee was constituted to resolve the dispute between the two religions.
In 1990, the then BJP leader, Lal Krishna Advani, not only aroused the orthodox Hindu masses in favour of the claim for Ram Janmabhoomi, but also went to the extent of conducting a Rath Yatra from Somnath to Ayodhya to create pressure on the Uttar Pradesh Government so that they accept their claim. This Yatra led to instigation of communal violence and caused the Bihar Government to arrest Advani for inciting communal violence.
Facts of the Case
When L.K. Advani was granted bail in the above charges against him, he, along with other BJP leaders like Murli Manohar Joshi and Uma Bharati, called for a rally at the plot on which the Babri Masjid was situated. At this rally, they made speeches that incited the crowds and the angry mob demolished the Babri Masjid within a few hours and established a makeshift temple in its stead, in spite of the police force present to control the rally, as they were greatly outnumbered. This resulted in widespread riots in Ayodhya, which further spread to the cities like Delhi, Mumbai and Hyderabad, causing the death of over 2000 people. This caused the Government to move the Court to reinstate the status quo.
The Sunni Waqf Board filed FIRs against such vandalism, seeking that justice be done and that they be given control over the plot of land as well as compensation for the injury caused to not only their religious structure but also their religious sentiments. Two FIRs were filed, one against the unnamed kar sevaks who demolished the mosque, and the other against the political leaders like Advani, Joshi, etc. who incited the mob by giving communal speeches.
The CBI also filed a composite charge sheet in the case stating that L.K. Advani and the other political leaders were liable for the offence of criminal conspiracy, which was dropped without any hearing by the Special CBI Court and was also not further pursued by the Lucknow Bench of the Allahabad High Court. This dropping of charges against the political leaders on technical grounds was challenged by the CBI before the Allahabad High Court, but the Court dismissed the plea.
Verdict by the Allahabad High Court
The Lucknow Bench directed the Archaeological Survey of India (ASI) to examine whether a temple dedicated to Lord Rama existed at the disputed site and the ASI confirmed finding a structure like that of a temple from the 10th century under the remains of the mosque, although there was no proof as to whether that temple was dedicated to Lord Rama. This finding was immediately challenged by the All India Muslim Personal Law Board. Moreover, after 17 years of being constituted, the Liberhan Commission submitted its report on the issue in 2009, a document which was never made public.
The Allahabad High Court pronounced its verdict in 2010, dividing the plot into three parts, one going to the Nirmohi Akhara, one to the Sunni Waqf Board and the third to the parties for the building of a temple dedicated to Ram Lalla. The Allahabad High Court not only lets the kar sevaks and all the political leaders go scot free but, through this judgement, also justifies the act of demolition of a religious structure of the Muslims because although the judgement decried the demolition of the Hindu temple in the 16th century by the Mughals, it does not even talk about the demolition of the Babri Masjid by Hindus in a democratic and secular state like India, let alone criticise the same.
Appeal to the Supreme Court
The CBI challenged the High Court judgement before the Supreme Court, arguing that “the actual demolition of the Babri Masjid and the continuous assault on media persons form a single connected transaction and can well be a concerted conspiracy”. The Supreme Court had already condemned the demolition of the mosque in 1992 and expressed surprise and concern at the strange decision of the Allahabad High Court. The execution of the decree was immediately stayed and it decided to consider the plea of the CBI that the charges of criminal conspiracy against the political and Hindu radical leaders not be dropped.
In 2017, the Supreme Court first advised that the dispute be settled out of the Court as it is a very sensitive issue and a judicial decision, leaning towards whichever side, could prompt another wave of riots in the country. However, realising that any such settlement is not possible, the Supreme Court accepted the plea of the CBI and revived the criminal conspiracy charges against the BJP political leaders and others involved in inciting the mob violence, along with charges under Sections 147 (rioting), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object), 153A (promoting enmity between different groups on ground of religion, etc.), 153B (imputations, assertions prejudicial to national integration) and 505 (statements conducive to public mischief) of the IPC. The Apex Court went on further to hold the decision of the Allahabad High Court as erroneous and criticised the CBI for the way in which it pursued the matter, leading to a delay of 25 years in doing justice to such a sensitive case.
The case has now been transferred to a Special CBI Court for speedier disposal (the prescribed time period is 2 years) with daily hearings and no adjournments, although the accused leaders have to be personally present in the Court daily for the purpose of the proceedings.
Criminal Conspiracy in the Babri Masjid Demolition Case –
If the instant case is viewed only from the perspective of the essentials that need to be fulfilled to establish a charge of criminal conspiracy, it is clear why the CBI wanted to press the charges for the same. However, another reason for pressing the charges of criminal conspiracy was so that the politicians involved in the issue do not go off scot free even if they are not found to be liable under the other provisions they have been charged with.
The incident of demolition of the Babri Masjid falls well into the category of criminal conspiracy as it fulfils all of its essential ingredients –
- There was involvement of more than two people as the number of only the eminent BJP leaders involved was three.
- The CBI has alleged that there was a common agreement between these leaders to give communal speeches which would incite the gathered crowds and instigate them to commit violent activities. Thus, the leaders were aware that their acts may lead the mobs to demolish the mosque at the spur of the moment.
- The act that the leaders intended to commit and their ultimate object were both unlawful. They were involved in giving communal speeches and inciting the masses who had come to their rally, and their object was to cause mob violence leading to the demolition of the Babri Masjid.
In the Devender Pal Singh case, the Supreme Court referred to the Indian Penal Code and the criminal conspiracy laws of the USA and the UK to chalk out the following essential elements for the commission of the offence of criminal conspiracy –
- An object to be accomplished;
- A plan or scheme to accomplish that object;
- An agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement or by any effectual means; and,
- An overt act in pursuance of the agreement, in case a legal act is the object.
In the instant matter, the object to be accomplished was the demolition of the Babri Masjid because the demands of the Hindu activists were not being met even after so many years of agitation. The plan hatched by the political leaders was that they would gather a crowd for an apparently peaceful rally and will give communally coloured speeches that will definitely incite the crowd. Kar sevaks who know about the ploy will be mixed in the crowd and will ensure that the incitement creates a mob sentiment in the crowd and their religious sentiments flare up enough to make them want to demolish the mosque. In case the people in the crowd were too hesitant to initiate the act, they would do the needful. However, as per the law, they will not be carrying any implements with them to enable them to break down such a structure. This, again, will be provided by the prepared kar sevaks.
This was the plan agreed upon by the political leaders which would be implemented in the manner described above, or, in case of emergent circumstances, any other means which would be just as effective. And further evidence as to their intention is found in their acts/omissions before and during the demolition of the mosque, i.e. they did indeed give the communal speeches and incite the mob so that they demolish the mosque at the spur of the moment. In fact, the CBI investigation states that the mobs could have been controlled alone by the leaders on the stage, and not by the police, whom they outnumbered, but these leaders omitted to say or do anything that could have stopped the mob or calmed them down.
It had been the contention of all the involved political and religious leaders that the mob became violent in the spur of the moment and there was nothing that could have been down to stop them as the situation had arisen suddenly and was completely unforeseen. It is this ground that the CBI has been trying to refute, unsuccessfully, over so many years. It is the allegation of the CBI that the leaders had agreed to give such communal speeches which would instigate the masses so much that they would end up demolishing the Babri Masjid.
Another proof of the planned nature of the demolition was that although the masses were not allowed to bring any arms and the like, they somehow had a supply of implements with which they were able to bring down a 500 years old structure. This shows that all the people there were not innocent masses who were instigated by the speeches of the political leaders; many were kar sevaks involved in the planning and implementation of the scheme for demolishing the mosque.
Thus, the prosecution has to establish that there was a common intention to demolish the mosque even before the rally took place and that the kar sevaks were summoned by the political leaders to serve this very purpose. This would enable the Court to impose collective responsibility on all the persons involved in demolishing the structure as well as those who were giving the speeches and those merely standing by with the knowledge as to what is going to follow.
Keeping these circumstantial evidences and all the relevant possibilities in mind, it is to be decided by the Special CBI Court now as to whether the accused political leaders are actually liable for criminal conspiracy.
The Babri Masjid demolition case is one of the most classic examples of how confusing the offence of criminal conspiracy is and how difficult it is to establish it and get the right person convicted. It, moreover, shows how charging someone with criminal conspiracy, because it depends almost entirely on circumstantial evidence, leaves a lot to judicial discretion. Thus, often, very powerful people can dodge the net but helpless citizens of India are entrapped by a provision which can effectively punish someone only if the Court thinks that is the right thing for them to do.
What is necessary is that there should be safeguards or certain guidelines which will govern the procedure of implementation of such a vague provision of law, especially because its punishment will tarnish the reputation of any person by adding a prison sentence to his record. However, it is also important that these safeguards are not used by the guilty to escape liability. Therefore, the Court have to better understand the concept of criminal conspiracy and not let political pressures sway them, as in the case of the Babri Masjid decision of the Allahabad High Court.
In the instant case, it is hoped that this time, the politicians will not go off scot free and will be prosecuted in accordance with the principle of equality before the law. It is expected that the judiciary will finally do justice to the losses caused by the Hindus by demolition of the Babri Masjid and provide a just remedy that would heal the wound inflicted on the Muslim religious sentiments. This is the only way this blow to the secularity can be remedied and the secular image of India be restored.
 Mulcahy v. R, (1868) LR 3 HL 306.
 Criminal Law Amendment Act, 1913, Objects and Reasons.
 Devender Pal Singh v. State (NCT of Delhi), (2002) 5 SCC 234.
 P.S.A. Pillai, Criminal Law, LexisNexis, Gurgaon, 2016, at 236.
 State of Tamil Nadu v. Nalini, (2001) 1 SCC 378.
 “Babri Masjid Demolition Case: Timeline of events since the construction of the mosque”, Financial Express, available at http://www.financialexpress.com/india-news/babri-masjid-demolition-case-timeline-of-events/633647/ ( last accessed Sept. 4, 2017, 11:50 P.M.).
 Supra note 4.