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Criminal conspiracy and attempt

Bharatiya Nyaya Sanhita · Unit II · Topic 8 of 29 · 6 min read

Criminal conspiracy under section 61 and attempt under section 62 of the Bharatiya Nyaya Sanhita, how conspiracy is proved, and where preparation ends and attempt begins, with Kehar Singh, Abhayanand Mishra and Mohd. Yakub.

On this page
  1. 1. Criminal conspiracy: section 61(1) (old ss.120A and 120B IPC)
  2. 2. Punishment: section 61(2)
  3. 3. How conspiracy is proved: Kehar Singh
  4. 4. Conspiracy and abetment by conspiracy
  5. 5. Attempt: section 62 (old s.511 IPC)
  6. 6. Preparation and attempt: the tests
  7. 7. Problem
  8. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Both offences punish conduct before the completed crime. Conspiracy punishes the agreement; attempt punishes an act done towards the offence after preparation is over. For conspiracy, learn the definition, the proviso requiring an overt act for non-offences, and how it is proved. For attempt, learn the tests and the two Supreme Court cases that settle them.

1. Criminal conspiracy: section 61(1) (old ss.120A and 120B IPC)

When two or more persons agree to do, or cause to be done, (a) an illegal act, or (b) an act which is not illegal by illegal means, the agreement is a criminal conspiracy. The proviso: no agreement except an agreement to commit an offence amounts to a criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance of it. The Explanation adds that it is immaterial whether the illegal act is the ultimate object of the agreement or merely incidental to it.

The elements are therefore:

2. Punishment: section 61(2)

Specific conspiracy offences exist elsewhere, such as conspiracy to wage war (s.148).

3. How conspiracy is proved: Kehar Singh

Conspiracies are hatched in secret and direct evidence is rare. In Kehar Singh v. State (Delhi Administration), 1988 INSC 200, (1988) 3 SCC 609, arising from the assassination of Prime Minister Indira Gandhi, the Court held that:

The Court upheld the conviction and death sentence of Kehar Singh on the circumstances showing his association with and influence on the assassin, and acquitted Balbir Singh, against whom the evidence did not go beyond suspicion.

4. Conspiracy and abetment by conspiracy

5. Attempt: section 62 (old s.511 IPC)

Whoever attempts to commit an offence punishable with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, is punished, where no express provision exists, with up to one-half of the imprisonment for life or one-half of the longest term, or fine, or both. Many offences have their own attempt provisions (attempt to murder, s.109; attempt to commit culpable homicide, s.110), and some definitions include attempt (waging war, s.147).

The illustrations make impossibility no defence: A breaks open a box to steal jewels and finds it empty; A thrusts his hand into Z's empty pocket. Each is guilty of attempt.

6. Preparation and attempt: the tests

In Abhayanand Mishra v. State of Bihar, 1961 INSC 178, AIR 1961 SC 1698, the appellant applied to Patna University for permission to sit the M.A. English examination as a private candidate, falsely representing that he was a graduate and a teacher, and supplied forged certificates. The University issued an admission card before the fraud was discovered. The Court held him guilty of attempt to cheat. Preparation was over when he sent the application; an attempt begins when the accused, having prepared, commences to do something with the intention of committing the offence, and the act need not be the last act before the offence would be complete.

In State of Maharashtra v. Mohd. Yakub, 1980 INSC 40, (1980) 3 SCC 57, the accused were intercepted at night near the sea coast with silver ingots in their vehicles, unloading them close to a creek while the sound of a sea-craft engine was heard. They were held guilty of attempting to export silver illegally. Sarkaria J. described the four stages and explained that an act is an attempt when the accused, intending the offence and having made preparations, does an act towards its commission which shows that he has gone beyond preparation, even though it is not the last act.

Trap. Preparation is punishable only where the Sanhita says so: preparation to wage war (s.149) and to commit dacoity (s.310(4)). Do not call preparation for murder or theft an offence. Conversely, once an act towards the offence is done, failure through impossibility or interruption is no defence to attempt.

7. Problem

A buys poison intending to kill B, and mixes it into a sweet which he wraps and keeps in his drawer. Next day he hands the sweet to B's servant to deliver. The servant becomes suspicious and informs the police. Liability of A?

Issue. Whether A's acts amount to preparation or to an attempt to murder.

Law. Section 109 (attempt to murder) and s.62; the tests in Abhayanand Mishra and Mohd. Yakub.

Application. Buying poison and preparing the sweet are preparation: A could still change his mind. Handing the sweet to the servant for delivery is an act towards the commission of murder which A has put out of his control, and the intention is unequivocal.

Conclusion. A is guilty of attempt to murder under s.109 BNS (old s.307 IPC), though B was never harmed.

How this is examined

“Criminal conspiracy” appears regularly as an essay or short note: definition, elements, punishment, proof, and difference from abetment. “Distinguish between preparation and attempt” is a standing question; give the four stages, the tests, and the two Supreme Court cases. Problems on attempt with an empty pocket or a stopped poisoning are common.

Now try the real questions: Bharatiya Nyaya Sanhita past question papers.