Under what circumstances things said or done by conspirators in reference to common design are relevant?

Question: Under what circumstances things said or done by conspirators in reference to common design are relevant? [R.J.S. 2011]

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Answer

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 statements of the others unless there is a common bond linking all of them together. This is the basis of the provision under section 10 of the Indian Evidence Act.

Section 10, Indian Evidence Act deals with the provision for “Things said or done by conspirator in reference to common design”.

It states-

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 person was a party to it.

This section refers to things said or done by conspirators in reference to the common design. To attract the applicability of this section, the court must have reasonable ground to believe that two or more persons had conspired together for committing an offence and then the evidence of action or statement made by one of the accused could be used as evidence against the other.

The section is based on the principle that that, by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attitude of individuality, so far as regards the prosecution of the common design; thus rendering whatever is done or said by anyone in furtherance of that design, a part of the res gestae and therefore the act of all.

Therefore, under the following circumstances the principle of section 10 can be invoked against the accused:

1. The reasonable ground of conspiracy- The operation of this section is strictly conditional upon there is reasonable ground to believe that two or more persons have conspired together to commit an offence.
2. Reason to believe on accused as members of the conspiracy- There must be a reason to believe that there was a conspiracy and the accused persons were members of that conspiracy.
3. There must be a common intention- The section refers to things said or done by a conspirator in reference to the common intention. Anything said, done or written “in reference to the common intention” is admissible, and therefore the content of letters written by one in reference to the conspiracy is relevant against the others even though not written in support of it or in furtherance of it.
4. The act did in reference to their common intention- The expression “in reference to their common intention” in this section is very comprehensive with the result that anything said, done or written by a co-conspirator after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left 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 the conspiracy.

The landmark case is of Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1. In this Bombay terror attack case, the appellant was apprehended while he was on a killing spree in the execution of the objects of the conspiracy. The transcripts of the phone conversation of the other terrorists, who were associates of the appellant and their foreign collaborators, related to a time when the speakers were not only free but were actively involved in trying to fulfil the objects of their conspiracy.

Therefore, it was held by Supreme Court that the transcripts were by no means any confessional statements made under arrest and they were fully covered by the provisions of section 10 of the Indian Evidence Act for the purposes of proving the factum of conspiracy amongst them.

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