THINGS SAID OR DONE BY CONSPIRATOR IN REFERENCE TO COMMON INTENTION
Posted on Sunday, December 16, 2012 by Unknown
Where there is reasonable ground to
believe that two or more person have conspired together to commit an offence or
an actionable wrong, anything said, done, or written by any one of such person
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
person 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 person
was a party to it.
This section talks about the things
said, done or written by the conspirator in reference to common intention. In
this section there are some expressions have been used as thins said, done or
written, in reference to their common intention. Each of the word has its own
importance in the application of this section and all these things must be
properly taken into consider by the courts before applying this section.
This section is based on the “theory of
implied agency”. So the things said or done by one conspirator are admissible
against the other if they relate to the conspiracy.
MEANING
OF CONSPIRACY:-
The term conspiracy means a secret plan
by a group to do something unlawful and harmful or something which is not
unlawful but by unlawful means.
According to Stephen, “when two or more
persons agree to commit any crime, they are guilty of conspiracy whether the
crime was committed or not”.
It is not necessary in order to
constitute a conspiracy that the acts agreed to be done should be acts which if
done should be criminal. A conspiracy consists of unlawful combination of two
or more persons to do that which is contrary to law or to do that which is
wrongful towards other persons. A mere agreement to commit an offence becomes
criminal conspiracy.
PRINCIPAL
AND SCOPE:
Theory of Agency:
The general principal is that no person
can be made liable for the acts of another except in cases of abetment in
criminal proceeding and contract of agency in civil proceeding. But in
conspiracy the persons who take part in conspiracy are deemed to be the mutual
agent or confederates for the purpose of the executive of the joint purpose.
In Badri Rai v. State, it has been held
that section 10 of the evidence act has been deliberately in order to make such
acts or statements of the co-conspirator admissible against the whole body of
conspirators, because of the nature of the crime. 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 accused with
the acts or statement of the others, unless there is common bound linking all
of them together.
In Emperor v. Shafi ahmed it has been
held that if two or more persons conspire together to commit an offence, each
is regarded as the agent of the other, and just the principal is liable for the
acts of agent, so each conspirator is liable for what is done by his fellow
conspirator, in furtherance of the common intention entertained by both of
them.
In Indian law the scope of this section
is wider than the English law. As in English law the expression is used is “in
furtherance of their common intention” whereas in Indian law the expression is
used is “in reference to their common intention”. This expression in Indian law
is only used to give wider effect to this section than the English law.
ADMISSIBILITY
AND APPLICABILITY:-
There are some essential elements which
must be proved prima facie before the court to admit the statements made under
S.10 of Evidence Act.
Those are:
Existence of the conspiracy:
The operation of S10 is strictly conditional
upon being reasonable ground to believe that two or more persons have conspired
together.
In Government of NCT of Delhi v. Jaspal
Singh, it has been held that once there is sufficient material to reasonable
believe that there was concert and connection between persons charged with a
common design, it is immaterial whether they were strangers to each other, or
ignorant of actual role of each of them or they did not perform any one or more
of such acts by joint efforts. It is not necessary that all should have joined
in the scheme from the first; those who come in at later stage are equally
guilty, provided the agreement is proved.
Before bringing on record, anything
said, done, or written by an alleged conspirator the court has to bring on
record some evidences which prima facie proves the existence of the conspiracy.
In Gulab Singh v. Emperor, it has been
observed that it is necessary in a prosecution for conspiracy to prove that
there were two or more persons agreeing for purpose of conspiracy and that
there could not be a conspiracy of one. This decision is based on the decision
given in King v. Plummer.
The person making statement must be a
party to such conspiracy and the alleged person must conspire together with
other members:
All acts and statements of a conspirator
can only be used for the purpose of proving the existence of the conspiracy or
that a particular person was party to it. It cannot be used in favour of the
other party or for the purpose of showing that such a person was not a party to
it. And there must be reasonable ground to believe that they have conspired
together.
It is true that the expression
‘reasonable ground to believe’ does not mean it is proved. It certainly
contemplates something short of actual proof and means that there should exists
prima facie evidence in support of the existence of the conspiracy between two
or more accused persons, and it is then only that anything said, done or
written by one can be used against the other.
In Samundar Singh v. State, it has been
held that the evidence is taken after a prima facie proof of conspiracy but at
a later stage of the trial that reasonable ground of belief or prima facie
proof is displaced by further evidence; the court must reject the evidence
previously taken.
Things said, done, or written in
reference to their common intention:
If the things are said, done, or written
in reference to the common intention of the conspiracy then only the things
said, done, or written will be admissible in the court of law. But if anything
said, done, or written by any fellow conspirator after the conspiracy no longer
exist and had ended or ceased to exist, it will be inadmissible against other.
‘Anything said’ would include the
speeches, or declarations made by the person. Evidence of communication between
conspirators while the conspiracy is on is admissible. Anything written by a
conspirator will not bse admissible against him or others if it is not done in
the reference to the common intention of the conspiracy. The expression
‘written’ would include the manuscripts, whether signed or unsigned, written or
typewritten.
The word in reference to their common
intention mean in reference to what at the time of statement was intended in
the future.
Every conspiracy is made in a great
privacy due to that it is very difficult to gather evidences against the
conspiracy. Direct evidences cannot be taken because of that. It is only from
the members of the family or from the persons who are intimately connected with
those persons or from their associates the evidences can be collected.
ADMISSIONS
OF EVIDENCES RELATED TO ACTS OUTSIDE THE PERIOD OF CONSPIRACY:
This is very clear with the bear text of
S.10 that the things said, done, or written will be relevant only then when
such intention was first entertain by any one party to the conspiracy. Again
the thing is necessary to remember that the things said, done, or written is
not relevant when the conspiracy is over.
In the case State of Tamil Nadu v.
Nalini, it has been held that once it is shown that a person snapped out of
conspiracy, any statement made subsequently thereto cannot be used against
other conspirator under section 10 of Evidence Act.
In the case of Mirza Akbar v. King emperor,
the privy council held that correspondence between the accused was relevant
under section 10 as the substance of the latter were only consistent with the
conspiracy between the accused prisoners to procure the death of ali asghar,
but the statement of mehr laqa to the magistrate was not relevant under section
10 as it was made after the object of conspiracy had already been carried out.
In the case of L.K.Advani v. CBI, Delhi
high court held that there is no evidence on record except the alleged entries
in the diaries and no loose sheet to prove the clam of the conspiracy and also
there is no evidence to show that the entries were made in reference to common
intention of the conspirators after it was first entertained.
By above discussion we can say that there
are some essentials which a court considers to be look after it before
admitting the statements under section 10 of Evidence Act.
In Re Raman Ratanan, the first accused
agreed to supply to the second accused a packet of explosive for the purpose of
blowing up a railway bridge and the second accused along with others used the
explosive, but his attempt proved unsuccessful; later the second accused wrote
a letter to the first accused mentioning his unsuccessful attempt and ask him
to supply some more explosive substance. On those facts it has been held that
the latter of second accused was not admissible against the first accused as to
the common intention had ceased to exist after the attempt to blow up the
bridge failed.
In different judgments of the court of
law it has been held that the statements said, done, or written in reference to
their common intention must be made when the conspiracy is on. Neither before
it start nor after it end. In both the cases the statements will not be
admissible.
CONCLUSION:
After going through section 10 of
Evidence Act and many case related to this section thoroughly it can be conclude that, there is no discretionary power given to the courts as to the
admissibility of the statements made under section 10 of the Act, but there are
some essential ingredients which has to be fulfilled in this regard. Those
ingredients are stated in the case of Bhagwant Swaroop v. State of Maharashtra are:
· There shall be prima facie evidence
affording a reasonable ground for a court to believe that two or more persons
are member of a conspiracy;
· If the said condition is fulfilled
then anything said, done or written by anyone of them in reference to their
common intention will be evidence against the others;
· anything said, done or written by him
should have been said, done or written by him after the intention was formed by
any one of them;
· it would also be relevant for the said
purpose against the another who entered the conspiracy, whether it was said,
done or written before he entered the conspiracy or after he left;
· And it can be used only against and
not in his favour.
The time of the thing said, done or
written is also a essential thing to look after before the admissibility of the
statement that on the time when the statement is made at that time the
conspiracy was on or not, a statement cannot be admissible under section 10 if
the statement is made before the time when the conspiracy was first entertained
and after the conspiracy is end.
Hence it is clear that there is no
discretionary power given to the court for the admission of the statements made
under section 10 of Evidence Act but there are some prima facie and
circumstantial evidences which must proved before any admission of the
statement under this section of the Act.
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