2001 Supreme(SC) 1129

2001(6) Supreme 247
Supreme Court of India
(From Kerala High Court)
K.T. Thomas and D.P. Mohapatra, JJ.
Firozuddin Basheeruddin & Ors. —Appellants
versus
State of Kerala —Respondent
Criminal Appeal Nos. 357-359/1998
Decided on 20-8-2001
Counsel for the Parties :
For the Appellants : Mr. Rajinder Singh, Senior Advocate, Mr. E.M.S. Anam and Mr. Fazlin Anam, Advocates.
For the Respondent : Dr. Jose Varghese and Mr. K.M.K. Nair, Advocates.

Very Important Point
It is settled law that criminal conspiracy can be proved by circumstantial evidence. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity.

Headnote:(i) Indian Penal Code, 1860—Sections 120A and 120B—Criminal conspiracy and its punishment—All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by law of complicity—Rationale of conspiracy—Proof—Major problem in finding agreement of conspiracy—Liability of conspirators—Agency theory—Case law discussed.

       Held : Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offense, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy. Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy - who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast. Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant’s liability than the fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand, said:

       "Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made ‘a partnership in crime’. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all. [Van Riper v. United States 13 F.2d 961, 967 (2d Cir. 1926)]."

       Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres. (Paras 23, 24, 25, 26 and 27)

       (ii) Indian Penal Code, 1860—Sections 120B, 302 r/w 120B and 34, 201 r/w 120B and 34—Criminal Procedure Code, 1973—Section 306—Evidence Act, 1872—Section 10 —Appellants A3, A4, A5, A7, A9 and A15 found guilty of 120B, 302 r/w 120B and 34 and 201 r/w 120B and 34 IPC by Sessions Court—High Court upholding their conviction & sentence for a criminal conspiracy to murder Hamza at the instance of first accused Pakistan Abdul Rehman in which A3 to A5, A7, A9 and A15, who stood trial, were involved as co-conspirators—Appeal against to Supreme Court—Whether judgments of Courts below suffer from any infirmity? (No)—Appeals dismissed.

       Held : The conspiracy angle of the case has been discussed from para 129 onwards of the judgment. Referring to the decisions of this Court like N.M.M.Y. Momin v. State of Maharashtra (AIR 1971 SC 885), S.C. Bahri v. State of Bihar (AIR 1994 SC 2420), Kehar Singh & Ors. v. State (Delhi Administration) 1989 Crl.LJ.1, the learned trial Judge observed, and in our view rightly, that it is settled law that criminal conspiracy can be proved by circumstantial evidence. Relying on the provisions of Section 10 of the Evidence Act, the learned trial Judge has held in para 135 of the judgment that the prosecution has succeeded in establishing conspiracy to murder Hamza and that A3, A4, A5, A7, A9 and A15 were responsible for the death of Hamza. (Para 14)

       The High Court concluded: "...The several items of evidence and circumstances established beyond doubt that there was a criminal conspiracy to murder Hamza at the instance of the first accused, in which A3 to 5, A7, 9 and 15, who stood trial, were involved as co-conspirators". The High Court concluded its judgment with the following observations/findings:

       "Criminal conspiracy is not easy to prove. The conspirators invariably deliberate, plan and act in secret over a period of time. It is not necessary that each one of them must have actively participated in the commission of the offence or was involved in it from start to finish. What is important is that they were involved in the conspiracy or in other words, there is a "combination by agreement, which may be express or implied and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration". The court has to be satisfied that there is a reasonable ground to believe the existence of the conspiracy and that is a matter for judicial inference from proved facts and circumstances. Once the existence of conspiracy is proved or held to exist, no doubt on relevant evidence, every act, declaration and writing of any one of the conspirators referable to the common intention will be relevant. Hearsay is not excluded if it could be brought within the parameters of Section 10 of the Evidence Act. From the facts and circumstances of this case we have no doubt about the existence of the criminal conspiracy and the participation and involvement of A3 to A5, A7, A9 and A15 (Firosuddin Basheeruddin @ Firoz, Kashinath Sankar Khare @ Sankar, Nandakumar Gopinath Banker @ Nandu, K.A. Mohammed Shaffi, Kareem Abdul Rahiman @ Abdul Rahiman and P.V. Mohammed Najeeb), besides others (about who it is not proper to say anything since they had not faced trial). The above conspirators had made the necessary preparations, equipped themselves and successfully achieved the object of the conspiracy by the murder of Hamza. They had also sought the evidence of commission of the offence to disappear and to screen the offenders. The offences under Sections 302, 120B, 201 r/w 34 I.P.C. had been established against A3 to 5, 7, 9 and 15. We uphold their conviction and sentence as awarded on those counts and accordingly dismiss the criminal appeals." (Para 20)

       Held consequently : We have perused the judgments of both the Courts below and considered the entire case on the touch-stone of well recognised principles for judging a case of criminal conspiracy. The prosecution has been able to unfold the case relating to the criminal conspiracy to eliminate Hamza (deceased) by placing on record the chain of circumstances. We find that both the trial Court and the High Court discussed the relevant evidence on record taking care to exclude the portions not acceptable and /or tenable in law. The courts below have also been fair in discussing the contentions raised on behalf of the defence in some detail and have given cogent reasons for rejecting the same. We do not find that the judgments of the Courts below suffer from any illegality in the approach to the case or any perversity in appreciation of the evidence on record. We have no hesitation to hold that the judgment of the High Court confirming the judgment/order of the trial Court convicting and sentencing the appellants, does not call for any interference. Accordingly the appeals are dismissed. (Para 34)