Section 10 deals with the admissibility of evidence in a conspiracy case and is based on the theory of implied agency i.e. every conspirator is an agent of this association in carrying out the objects of the conspiracy. The special feature of the section is that anything said or done or written by any member of conspiracy is evidence and admissible against the other if it relates to the conspiracy. Section 10 has been deliberately enacted in order to make acts and statements of a co-conspirator admissible against the whole body of conspirators, because of the nature of crime.
This section has to be read with Section 120A of the Indian Penal Code. Conspiracy as defined under Section 120 A of the IPC states that, when two or more persons agree to do or cause to be done, an illegal act or an act which is not illegal but illegal by its means, is said to be a conspiracy. Provided that no agreement other than an agreement to commit an offence shall amount to criminal conspiracy.
Section 10 IEA:
According to Section 10 of the Indian Evidence Act, 1872 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.
Illustration:
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.
Comments:
According to Section 10 of the Act, anything said or done or written by any one of the conspirators in respect of their common intention is admissible under Section 10 of the Act against all the conspirators for the purpose of proving
(a) that the conspiracy existed and
(b) for the purpose of proving that a person was party to it.
However, it is important to point out here that everything said or done or written by one of the conspirators at any time will not be relevant under Section 10 of the Act, it is only after the time, when such intention was first entertained by any one of them is relevant similarly it is not each and everything said, done or written by a conspirator, even after the intention was entertained by conspirators, becomes relevant only thing said, done or written in reference to common intention of the conspirators will be admissible. It is to be noted that once the conspiracy is over this section has no applicability.
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.
When any conspirator has assumed to do any act of conspiracy in furtherance of common design, it is a part of res gestae. All conspirators must have “common intention” at the time when the thing was said, done or written.
Ingredients of Conspiracy:
- There must be an agreement between two or more persons who are alleged to conspire, and
- The agreement should be to do or cause to be done:
(a) An illegal act, or
(b) An act which is not illegal but by illegal means.
In Emperor v Shafie Ahmed (1929) 31 BOMLR 515 case, the Court 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 Mukesh v. State for NCT of Delhi, AIR 2017 SC 2161 case, the Court held that once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention is admissible against the others
In Rakesh Kumar v. State, 2000(1) Recent Criminal Reports 74 (Delhi) case, the Court observed that Section 10 will come into play when Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence there should be prima-facie evidence that person was a party to a conspiracy before his acts can be used against his co-conspirators, Section-10 of Evidence Act which is an exception to the general rule, while, permitting the Statement made by one conspirator to be admissible as against another conspirator restricts to the statement made during the period when the agency subsisted – Once it shown that a person became snapped out of conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators.
Conclusion:
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. Section 10 of the Evidence Act has been deliberately enacted 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. It is to be noted that once the conspiracy is over this section has no applicability.